The information contained in this web site is not legal advice; it is for educational purposes only. Use of Nissenbaum Hickey website(s) does not create an attorney/client relationship between you and Nissenbaum Hickey LLC, even if you provide this web site, whether by e-mail or through one of its software programs, with your personal or confidential information. If you are in the process of (or contemplating) a divorce or involved in any legal matter, you should hire a lawyer.

Copyright Notice

Copyright 2015 Nissenbaum Hickey LLC. All rights reserved. Reuse or copying of any material contained within this web site is by permission only, unless otherwise specified. Direct your questions about permissions to NissenbaumHickey.

After six years of marriage, the husband
(Merek) brought a complaint for divorce under G.L. c.
208, § 1B. The judge entered

Page 603

a temporary order for spousal and
child support in an amount which exceeded that provided
for in a "separation" agreement signed by the parties a
year earlier upon their reconciliation but now
challenged by the wife (Mary Lou) as unfair,
unreasonable, and the product of coercion and duress.
Merek sought relief under the first paragraph of G.L. c.
231, § 118. A single justice of this court entered an
order for a separate trial of the "question of the
validity and applicability of the agreement." [29
Mass.App.Ct. 690] After trial on that issue, the probate
judge concluded that the agreement was not fair and
reasonable and that it was null and void. On Merek's
appeal from the ensuing judgment, which was certified
under Mass.R.Dom.Rel.P. 54(b) (1975), we conclude that
the judge's findings are supported by the evidence and
available inferences and free of any error of law. We,
therefore, affirm the judgment.

1. The Status of the Agreement.

By its own terms, the agreement was to be
incorporated into, but not merged with, any judgment of
divorce. 1
Consequently, the agreement is "valid and binding, and
specifically enforceable, 'absent countervailing
equities,' when a judge determines, at the time of the
entry of a judgment of divorce nisi or thereafter, that
the agreement was free of fraud and coercion and fair
and reasonable at the time of the entry of the judgment,
and that the parties agreed on the finality of the
agreement. See Knox v. Remick, 371 Mass. 433, 436-437
[358 N.E.2d 432] (1976); Stansel v. Stansel, 385 Mass.
510, 514-515 [432 N.E.2d 691] (1982); Moore v. Moore,
389 Mass. 21, 24 [448 N.E.2d 1255] (1983). Cf. Osborne
v. Osborne, 384 Mass. 591, 599 [428 N.E.2d 810] (1981)."
Dominick v. Dominick, 18 Mass.App.Ct. 85, 91, 463 N.E.2d
564 (1984). If the issue of the status of the agreement
appears to have been raised somewhat prematurely, as
compared to the timing in the cases cited in Dominick,
we point out that, almost immediately after filing his
complaint, Merek requested a hearing "to determine the
applicability and validity of the agreement to the ...
complaint for divorce." Although Merek's motion was
denied by a Probate Court judge, the single justice's
order for bifurcation accomplished what Merek sought.

2. The Provisions of the Agreement and its
Execution.

In concluding that she would not enforce the
agreement, because its provisions were not fair and
reasonable and because it was procured through coercion,
the judge made detailed[29 Mass.App.Ct. 691] and
comprehensive findings of fact which have ample support
in the evidence. 2
We, therefore, relate the facts as the judge found them.

Merek became a member of the Massachusetts
bar in 1967, and thereafter received an advanced degree
in the law of taxation. At first a sole practitioner, he
employed another attorney in 1980, with whom, in 1982,
he formed a partnership. When a third attorney joined
them in 1986, they organized a professional corporation.
Merek has a seventy-five percent ownership interest in
the corporation, and his practice is focused upon
corporate and estate planning matters. In addition,
Merek has other ownership interests in ventures
unrelated to his legal practice.

Mary Lou met Merek in 1974, when she went to
work in his office. She was a high school graduate and
had attended a junior college for a year and one-half.
3 At the

Page 604

time she began working for Merek,
she and her first husband had recently separated and
were later divorced. She had custody of her two
children, now teenagers, by that marriage, and they have
always resided with her.

In 1980, prior to Merek's divorce from his
first wife, Mary Lou purchased a house in Southborough,
taking title to that property in her name alone. She
contributed about $10,000 towards the purchase price of
$119,000. The balance was financed with mortgages paid
by Merek. The purchase was handled in this fashion
because, as testified to by Merek, he did not want his
"first wife making a claim on the house" during their
divorce proceedings. 4

Shortly after his divorce in December, 1981,
Merek and Mary Lou took title to the Southborough
property, which ultimately[29 Mass.App.Ct. 692] became
their marital residence, as joint tenants. They married
on July 3, 1982.

After the marriage, Mary Lou continued to
work for Merek. Her responsibilities increased. She did
paralegal work and the bookkeeping. In 1986, she served
as the firm's comptroller. During the last three years
of her employment by Merek, Mary Lou was earning over
$20,000 a year. 5
While living and working together, Mary Lou and Merek
kept their money separate. Merek gave her between $125
and $175 a week which, with her salary, she used to pay
for the household operating expenses as well as her own
and the children's personal expenses.

Major household expenses and the mortgage
were paid by Merek. He has a current (1989) annual
income of about $120,000. Additionally, the firm
provides him with an automobile and pays all the
expenses related to it. He also draws $125 a week for
miscellaneous expenses, and there is a loan account,
maintained by the firm, from and to which Merek borrows
and loans money. As described by the judge, when the
parties last lived together, they enjoyed an
"upper-middle income" standard of living.

Marital discord began with Mary Lou's
pregnancy in 1985. Merek was working long hours and
spending little time at home. He became very irritable
and abusive towards Mary Lou and the children, yelling
and screaming, sometimes losing "complete control."

Just about a month before the birth of their
son on June 11, 1986, Merek terminated Mary Lou's
employment. Although he continued to give her about $200
a week for household expenses, she no longer had a
salary to use for her own and her children's expenses.
6 From
time to time, Merek would give her between $1,000 to
$3,000 for household expenses,[29 Mass.App.Ct. 693] but
Mary Lou did not have sufficient money without a salary.
She found part-time employment.

The marital relationship continued to
deteriorate. Merek's behavior became more volatile and,
on one occasion, as he wildly ran about the house with
their child, he accidentally banged the baby's head on a
wall. Mary Lou, in a state of upset and depression,
sought counselling, but Merek refused to join her. They
separated for a few days in October and, again, in
November, 1986.

On January 20, 1987, Merek left the marital
residence and moved into a friend's apartment. During
his absence, he continued to pay the mortgage. Mary
Lou's only income at this time was her salary from her
part-time work ($150 a week, gross) and some child
support she was able to collect from her first husband
($330 a month). In order to obtain additional income,
she worked briefly for a management company (while
keeping her part-time work) and, then, she also took a
position as a night auditor for a company, working from
11:00 P.M. to 7:00 A.M. This job was

Page 605

taken primarily because it provided
health insurance which Mary Lou feared Merek would
discontinue. While working at these jobs, Mary Lou was
also taking care of her three children.

Throughout this period, Mary Lou was, as
found by the judge, "extremely tired, depressed, and
under great physical strain." She and Merek were
discussing divorce, including issues of alimony, child
support, and property division. During these
discussions, Mary Lou neither sought nor received legal
advice. On March 20, Merek and Mary Lou went away for a
weekend to try to work out a reconciliation.

During their weekend trip, Merek told Mary
Lou that he would return to her on the condition that
she sign a separation agreement which would embody the
terms of their discussions and which would be binding
upon them in the event that their reconciliation failed.
By signing such an agreement, Merek told Mary Lou, she
would prove that it was he rather than his money that
she loved.

Although Mary Lou believed that she and Merek
merely had discussions about an agreement but had not
reached any [29 Mass.App.Ct. 694] accord on specific
terms, she was willing to make the required
demonstration of her love for him. She was convinced
that if Merek would return to her, they could resolve
their difficulties and save their marriage.

Upon returning from the trip, Merek set to
drafting an agreement with the assistance of an attorney
in his law firm. By the terms of the agreement, Mary Lou
would receive weekly alimony in the amount of $211 for a
period of six months or until their child attained the
age of thirty months, "whichever is later." Merek would
also pay child support in the amount of $560 a month.
7 A
schedule of Merek's assets, amounting to $1,300,000, was
attached to the draft of the agreement, which also
provided that Mary Lou would have ownership of the
marital residence, in which there was about $160,000 in
equity, as well as a small amount of stock. The
agreement would expire within three years of the date of
its execution unless divorce proceedings were commenced
by either party during that period. In the event divorce
proceedings were commenced, the agreement would take
effect. 8
See note 1, supra.

Notwithstanding Mary Lou's willingness to
sign the agreement proposed by Merek, who had returned
to the marital residence on March 29, 1987, he insisted
that she seek legal advice. When she did so, the
attorney with whom she consulted refused to have
anything to do with the agreement. Merek was very upset
by the attorney's refusal, and he warned Mary Lou that
there were to be no substantial changes in the terms of
the agreement and that if she did not sign it, he would
again vacate the marital residence.

Mary Lou turned to present counsel who was
able to negotiate some changes: alimony was increased to
$311 a week for one year, and provision was made for
their son's education[29 Mass.App.Ct. 695] and health
insurance. After giving her attorney a release from
liability, Mary Lou, on April 10, 1987, took the
agreement to a bank where she signed it before a notary
public. She then met Merek who took the agreement and
returned to his office where he signed it and had his
signature notarized.

In January, 1988, Merek left the marital
residence and moved into a condominium unit with another
woman with whom he was residing at the time of trial.
This woman was Merek's client and partner in a business
unrelated to his law practice. She had signed a purchase
and sale agreement for the condominium unit in 1986, and
again in 1987. As her attorney, Merek knew that this
woman did not have the money to buy the condominium unit
which he purchased in March, 1988, as a substitute

Page 606

buyer under the 1987 purchase and
sale agreement.

From January, 1988, until the time of the
judge's temporary order, Merek paid Mary Lou in
accordance with the terms of the agreement, that is,
$311 a week in alimony and $560 a month in child
support. As provided for in the agreement, Merek was to
be relieved of his alimony obligation in January of
1989.

Entered on September 28, 1988, the temporary
order obligates Merek to pay $600 a week in unallocated
alimony and child support, to maintain medical insurance
for Mary Lou and their child, and to be responsible for
all the child's reasonable uninsured medical and dental
expenses. Mary Lou's attorneys fees were to be taken
into account "at the time of final hearing."

3. The Refusal to Enforce the Agreement.

By both her answer to Merek's divorce
complaint and her motion for temporary support, Mary Lou
repudiated the agreement. Her "repudiation of the
agreement before the entry of judgment[ ] put the case
in a posture equivalent to one in which a party to an
agreement which survives a judgment of divorce nisi
seeks specific performance so as to bar a complaint for
modification of the judgment." Dominick v. Dominick, 18
Mass.App.Ct. at 92, 463 N.E.2d 564, citing Knox v.
Remick, 371 [29 Mass.App.Ct. 696] Mass. at 436-437, 358
N.E.2d 432, and Stansel v. Stansel, 385 Mass. at
514-515, 432 N.E.2d 691.

In reaching the ultimate findings and
conclusions that the "agreement does not make adequate
provisions for child support or alimony," that the
assignment of property was not based upon the factors
set out in c. 208, § 34, and was "inadequate and
incomplete," and that the agreement was the "product of
duress and coercion," 9 the judge
applied to the facts which we have recited in some
detail those considerations set out in Dominick v.
Dominick, 18 Mass.App.Ct. at 92, 463 N.E.2d 564: "(1)
the nature and substance of the objecting party's
complaint; (2) the financial and property division
provisions of the agreement as a whole; (3) the context
in which the negotiations took place; (4) the complexity
of the issues involved; (5) the background and knowledge
of the parties; (6) the experience and ability of
counsel; (7) the need for and availability of experts to
assist the parties and counsel; and (8) the mandatory
and, if the judge deems it appropriate, the
discretionary factors set forth in G.L. c. 208, § 34 ...
[T]he judge is not required to divine what judgment he
would likely enter if the case were fully litigated, but
only whether the agreement is fair and reasonable when
considered in light of the factors enumerated above and
any other relevant circumstances [footnotes omitted]."

[29 Mass.App.Ct. 697] Applying these factors
to the evidence found credible by the judge and the
available inferences which she chose to draw from that
evidence, we see neither an abuse of discretion nor
error of law in her decision not to enforce the
agreement. 10

Page 607

4. Nullification of the Agreement.

"Even where a judge of the Probate Court
properly refuses specific performance and orders support
(whether interspousal or child support) different from
that called for in the agreement, the party aggrieved by
that order has a claim for breach of contract."
DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231,
236-237, 508 N.E.2d 104 (1987), citing Knox v. Remick,
371 Mass. at 435-438, 358 N.E.2d 432. See also Mansur v.
Clark, 25 Mass.App.Ct. 618, 620-621, 521 N.E.2d 759
(1988). Here, however, the judge took from Merek any
right he might have had to bring an action at law under
the agreement. 11
Ibid. Paragraph two of the judgment provides that the
agreement "is hereby voided and of no further effect as
it was a product of duress and coercion."

As made clear by the judge's findings of
fact, this case involved far more than unfair and
inadequate provisions arrived at by keen bargaining. By
her pleadings, fairly read, and her proof, Mary Lou
sought a cancellation of the agreement because her
assent to it was obtained by Merek through a breach of
his confidential relationship with her as well as by
other unconscionable means. See note 9, supra. We see no
error in the judgment. See Anderson v. Anderson, 354
Mass. 565, 238 N.E.2d 868 (1968). Compare Moore v.
Moore, 389 Mass. [29 Mass.App.Ct. 698] 21, 448 N.E.2d
1255 (1983). Cf. Wood v. Wood, 369 Mass. 665, 670-671,
342 N.E.2d 712 (1976); Patten v. Mayo, 23 Mass.App.Ct.
657, 662, 505 N.E.2d 198 (1987).

Judgment affirmed.

---------------

1 The agreement
provides, in relevant part: "In the event that hereafter
a judgment of divorce is entered ... this Agreement may
be made a part of such judgment if the court so allows;
but in no event shall the within Agreement merge in said
judgment. This Agreement shall at all times be construed
as an Agreement having independent legal significance."

2 Merek's claim that
certain findings are clearly erroneous does not warrant
detailed discussion. For the most part, the argument is
no more than disagreement with the judge's determination
as to whom to believe and whether to draw available
inferences. In those instances where we found error, it
was on inconsequential matters.

3 Throughout the
years, Mary Lou has taken continuing education courses.
In May, 1988, she enrolled in college as a full-time
student, concentrating her studies in elementary
education.

4 There is one child
of that marriage who resides with Merek's former wife,
to whom Merek pays $600 a month for child support.

5 Both Mary Lou and
Merek earned larger than their normal salaries in 1985
but, as noted by the judge, that fact was attributable
to a large fee received that year.

6 Mary Lou was not
enforcing her right to child support from her first
husband.

7 Merek testified that
"at some point in 1987," he became aware of the fact
that child support guidelines controlling child support
payments would soon become effective and that the
guidelines could call for weekly support in an amount
greater than the monthly allowance provided for in the
agreement.

8 There was much more
to the agreement. We have described only the most
pertinent terms.

9 More specifically,
in respect to coercion, the judge found that after Merek
left the marital residence on January 20, 1987, he
knowingly refused to provide Mary Lou with enough money
with which to maintain the household, that as a result,
Mary Lou held numerous jobs, one at night, while also
caring for their baby and the two children from her
previous marriage, that she was "extremely tired,
depressed, and under great physical strain during this
time period," that Merek knew that Mary Lou was in a
"weakened position" and that he "would not stay with her
for the three years provided for in the agreement." See
Restatement (Second) of Contracts § 177(1) and (2), and
comments a and b (1981). See also 1 Lindey, Separation
Agreements and Ante-Nuptial Contracts § 9.06 (1990). Cf.
Rosenberg v. Lipnick, 377 Mass. 666, 671-672, 389 N.E.2d
385 (1979); Osborne v. Osborne, 384 Mass. 591, 595-599,
428 N.E.2d 810 (1981). Compare Grindlinger v.
Grindlinger, 10 Mass.App.Ct. 823, 406 N.E.2d 424 (1980),
where "sleeplessness and distraction" were caused by the
fact of the divorce itself rather than by the deliberate
actions of the spouse in order to gain bargaining
advantages.

10 Merek's argument
that Mary Lou is barred from obtaining equitable relief
by reason of her own conduct (see Shikes v. Gabelnick,
273 Mass. 201, 206-207, 173 N.E. 495 [1930] ), entering
into the agreement with the intention of never being
bound by it, fails for the reason, if no other, that it
is based upon a misunderstanding of her testimony.
Although Mary Lou did testify that when she signed the
agreement she never intended that it would be binding
upon her, she also explained that upon entering into the
agreement, she intended to make the reconciliation a
lasting one and the contract, therefore, unnecessary.